Supplement to The ueensland Reporter, Januaу 41, 1000. case depends upon circumstances. To show either by reference to the Second Schedule to the Act of 1910, or otherwise, that a lease had at one time existed which, if still current, would necessitate a determination by the Land Court, is not to establish the need of such a determination. If, for instance, the lease in the present case had been determined by surrender, resumption or forfeiture at the expiration of the first period, it is obvious that the duty of determining the rent for the second period would not have rested on the Court. That duty arises in the language of s. 29: 'Whenever it is necessary to determine the amount of any rent, or other money payable or to become payable under this Act," and the contention of the appellant is in effect that the surrender of the lease in the present case made it at once unnecessary and impossible to determine the rent payable for the second period. Some English cases are in point as showing the effect of a surrender. Each of the two cases cited relates to a disclaimer of lease by a trustee in bankruptcy, which, in accordance with the provisions of s. 23 of the Bankruptcy Act, operates as a surrender. "A The Ex parte Glegg, In re Latham (1), Jessel M.R. said: surrender of a lease destroys every proviso in it. property in a lease vests in the trustee from and after his appointment, and by his disclaimer it is got rid of eo instanti. . A surrender of the lease must be a surrender of the whole lease and of every provision in it, whether beneficial to the tenants or onerous. The whole lease is gone. If this be so, it is impossible to justify an act which was done under a license which had ceased to exist before the act was done." And Lush L.J. said: "I am of the same opinion. The words of s. 23 make it plain that by a surrender' is meant an entire surrender of the lease-a cesser of the relation of lessor and lessee. I never heard of such a thing as a surrender of a part of a lease; the entire relation of landlord and tenant is dissolved. It follows that when the disclaimer is executed, there is an entire end of the relation of lessor and lessee as if it had never existed." In Ex parte Sir W. Hart Dyke, In re Morrish (2), Jessel M.R. said: "What is the effect of the disclaimer ? It puts an end to the lease, not merely to the term, but to the lease itself. F.C. COLLINS v. THE KING. (1) 1881, 19 Ch.D. 7. (2) 1882, 22 Ch.D. 410. F.C. COLLINS 2 66 On the one hand, therefore, it deprives the landlord of the future According to this language it would seem that the position arising on the surrender of a lease is not consistent with the later determination of the rent by the Court. If a lessee who expected a reduction of rent surrendered his holding, and later attempted to force a determination of rent in order to secure a refund of overpaid rent, he would, I think, be completely answered by evidence of his surrender. The Crown would, I think, be entitled to say to him, "If you had continued to hold your lease, you would have been within your rights in asking for a determination just as you would have been entitled to other rights attaching to you as a lessee, such as the right of priority provided by s. 72 at the expiry of your lease, but you have exercised your right to surrender. Your right to receive anything which the Crown receives for the improvement of your late holding is preserved by s. 124, but otherwise your rights have gone with your lease, and the relation of landlord and tenant, which has subsisted between us, is completely ended." I agree with the majority of the Court that if the rent is to be determined at all, it must be determined nunc pro tunc, and that the surrender, if not kept out of mind altogether, must not preclude the determination of the rent for the full decennial period; but a determination made after surrender would necessarily be based in part on conditions obtaining later than the surrender and, to some extent, on a forecast of the future years of the assessment period. This would seem to be not in accord with that complete and instantaneous ending of the lease and of every provision in it-which is spoken of in the English decisions as a necessary effect of a surrender. The language, too, of s. 128 is quite inappropriate to indicate a lessee who has surrendered his lease. The obligations that section imposes, I think, cannot be held to attach to such a lessee. The terms "lessee" and "holding" in that section must be interpreted in the light of the interpretation clause, and a lessee who has surrendered can neither be called upon to pay up to the date of determination the same amount of annual rent as theretofore, nor can he be called upon to pay any arrears of rent that may be "found due" on determination. It is clear that all rent due up to the date of surrender or up to the preceding 30th September must be paid. The word due" is ambiguous. Sometimes it is used in the sense of "owing," and sometimes as meaning "presently payable," and it has been suggested in the present case that a proportion of the rent to be determined later accrued or became due on the 30th September in each year of the second period to determination. I find the argument for this view quite unconvincing. The condition imposed by s. 43 (i.) is that "the lessee shall durings the term pay an annual rent at the rate for the time being prescribed," and I consider that a fair case can be made out for the view that in the interval between the end of one assessment period and the determination of the rent for the next succeeding period, the "rate for the time being prescribed must, in view of the provisions of ss. 127 and 128, be held to mean the same amount of annual rent as theretofore." That amount is, I think, certainly prescribed within the meaning attached to that term by the interpretation clause, and it is the only immediately ascertainable amount of rent which is prescribed. The expression "for the time being prescribed," linked as it is with an obligation to pay an annual rent, indicates, I think, a rent ascertainable at the time, and if the rent which, it is contended, is denoted by the term "prescribed" is not ascertainable at all material times, I consider it is a fair ground for the view that that is not the rent which is prescribed. It is quite true that when the rent is determined by the Court, the rent so determined is the " annual rent at the rate for the time being prescribed," and that if the determination took place at the commencement of the assessment period, the determined rent would be the prescribed rent throughout the whole period. The F.C. COLLINS v. F.C. COLLINS v. fact that this is so, however, is, I consider, no warrant for the view that the "annual rent at the rate for the time being prescribed," means, under all circumstances, the rent determined by the Court for the whole of the current period. If s. 43 (i.) had so intended, it would have been easy to say so, and the fact that it does not say so is, I think, evidence that it did not so intend. The section seems to have been framed with due regard to the provisions of ss. 40 and 44, and to contingencies such as those provided for in ss. 126, 128, and 167. I have dealt somewhat lengthily with s. 43 (i.) because of the attention it has received in the judgment of the other members of the Court, but, in my opinion, it is not the most important element in the case. I think the rights of the parties in the particular respect under notice would not be materially different if s. 43 (i.) were non-existent. It will be observed that s. 128 is one of general application, but s. 43 (i.) has relation only to pastoral leases. There is no similar provision in s. 109 governing the conditions of lease for grazing selections, but I do not know that the rent obligations of the lessees of grazing selections are on that account any less or any different to those which attach to pastoral lessees. For the purpose of the present case, I think it is immaterial whether the rent eventually determined by the Land Court for the whole period is or is not the rent referred to in s. 43 (i.) as the "annual rent at the rate for the time being prescribed " It is, I think, clear that in the interval between the commencement of the current period and the determination of the rent for that period a pastoral lessee completely satisfies the rent obligation resting on him if he pays on 30th September in each year, the same amount of rent as theretofore," and that if default occurred in the payment of that amount, the holding could, at the option of the Crown, be declared forfeited. The arrears referred to in s. 128 are, I consider, an entire sum. They come into existence only on determination, and cannot properly be said at any earlier time to have accrued. Without specific provision they are, I consider, not apportionable, either for the purpose of a case like the present or for the purpose of determining the respective liabilities of successive lessees. Their prospective possibility at any time prior to determination had so little of the quality of growth that the parties could not know for certain whether they would materialise or not, whether the lessee. determination would result to the benefit of the lessor or the I think that by the second alternative mentioned in s. 122, it was intended to provide the means of an absolute surrender at any time on terms immediately acertainable. The lessee in this case had paid all rent due up to the time of surrender, and as the surrender stopped the accrual of rent and completely dissolved the relation of landlord and tenant between the parties, I consider the Land Court had, after the surrender, no duty to discharge in this case under s. 43, and that, therefore, the appeal should be allowed. On the appeal to the Full Court, Graham, for the appellant: The surrender of the lease operated on its execution-Fennell v. Blake (2)—or at latest on 1st February, 1920. The law with respect to surrenders is that in force in England prior to the Apportionment Act, 1870, which has not been rescinded in Queensland. All rent therefor which accrued due after the surrender is lost to the Crown. Ex parte Glegg, In re Latham (3), Ex parte Sir W. Hart Syke, In re Morrish (4), Grimman v. Legge (5), Slack v. Sharpe (6), Dibble v. Bowater (7), Re Lucas, Parish v. Hudson (8). The effect of ss. 43 and 128 of The Land Act of 1910 is to make the increased rent fixed by the Land Court for the second period only due after such determination, and such determination being made after the surrender, no rent could be payable by reason thereof. The Court should have declined to make an order declaring rent payable under s. 128, which was not in fact payable at law (1) 1874, L.R. 9 Ch. 383. (4) 1882, 22 Ch.D. 410, (5) 1828, 8 B. & C. 324. (8) 1855, 33 L.J. Ch. 101, F.C. COLLINS . THE KING. |